Gilmer v. Gilmer

By the Court.

Jenkins, J.,

delivering the opinion.

The question presented for our consideration by this record is one of jurisdiction.

The Constitution provides that civil cases “ shall be tried in the county in which the defendant resides.” This is the general rule, to which the Constitution makes exceptions not affecting this case, consequently in civil cases, not falling within any of the exceptions, no Court of any county other than that of the defendant’s residence has jurisdiction over him. The real question for our determination is, in what county does the plaintiff in error reside ? It is a question of law and of fact. He maintains that he resides in the county of Bibb, whilst the defendants in error insists that he resides in the county of Sumter, wherein they have sued him. He pleaded to the jurisdiction, and by counsel the question was submitted to the Judge, presiding in the Court below, upon an agreed statement of. facts.

He overruled the pleas, and the plaintiff in error excepted. The question turning upon a construction given to a statute passed in 1838, (Cobb’s Digest, 530,) which enacts that “the place where the family of any person shall permanently reside, and the place where any person having no family shall generally lodge shall be held and considered as the most notorious place of abode of such person or persons respectively.” Ordinarily there is no difficulty in determining the place of a man’s residence, but there are exceptional cases producing the embarrassment mentioned in the preamble. Among these are the cases of married men, whose peculiar avocations require their temporary sojourn at divers places in the course of each year, whilst their families are permanently located, or who from economical, sanitary, or other prudential considerations, establish their families permanently at one place, whilst they permanently conduct their business at another. To such cases the act doubtlessly applies. The Legislature wisely considered that where a man’s wife and children reside, is his home, the centre of his interests, his affections, and his pleasures. They were aware that his will determined the place of their residence, and certainly under such circumstances both reason and justice concur in holding that to be his own chosen residence.

But where, as in this case, a separation has taken place, where the family relation has been practically dissolved, where by mutual consent, or by the avowed purpose and overt act of the husband, he has abandoned the family and their homestead, never returning at stated times or occasionally, either to regulate domestic affairs or to participate in domestic enjoyments, this reasoning is wholly inapplicable. The husband no longer assumes to select the wife’s residence, she may change it at her pleasure, and wheresoever she may be, he never comes; and such, according to the agreed statement, is the condition of the husband and wife in this case. They are actually separated. Her place of abode is not his. Although he may have originally chosen hers, his will no longer holds her to it. He has abandoned her to her own control.

On this ground, among others, in one of the suits embraced in this record, she seeks a legal dissolution of the marital relation, already practically dissolved.

She may now change her residence when, and as her pleasure, or even her caprice may dietaté, uncontrolled and uninfluenced by him,"and possibly, unknown to him.

Thus, upon this construction of the statute, it may well happen that, “a person’s notorious place of abode” (using its language) is unknown to .himself.

We can not think the Legislature intended anything so unreasonable. We think that they intended this provision of the statute should apply to cases in which both the marital relation, in contemplation of law, and the family relation, in point of fact, exist'. The statute speaks of a family, not of wife and children.

Between the plaintiff in error and his wife and children, the family relation no longer exist. His place of residence must be determined by that provision of the statute which applies to “ a person having no family.”

Applying that to the agreed statement we hold, that Bibb, and not Sumter, is the county of his residence.

Let the judgment be reversed.